Citation Nr: 0704073
Decision Date: 02/08/07 Archive Date: 02/22/07
DOCKET NO. 05-13 548 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Lincoln,
Nebraska
THE ISSUES
1. Entitlement to service connection for anxiety and
depression.
2. Entitlement to service connection for posttraumatic
stress disorder (PTSD).
REPRESENTATION
Appellant represented by: Richard J. Mahlin, Attorney
ATTORNEY FOR THE BOARD
Jessica J. Wills, Associate Counsel
INTRODUCTION
The veteran served on active duty from July 1968 to March
1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) on appeal from a February 2005 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO)
in Lincoln, Nebraska, which denied he benefits sought on
appeal. The veteran appealed that decision to BVA, and the
case was referred to the Board for appellate review.
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
Reasons for Remand: To obtain the veteran's clinical records
from his period of service, to verify his alleged in-service
stressors, to afford him a VA examination, and to provide him
with a proper notice letter.
The law provides that VA shall make reasonable efforts to
notify a claimant of the evidence necessary to substantiate a
claim and requires the VA to assist a claimant in obtaining
that evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38
C.F.R. § 3.159 (2006). Such assistance includes providing
the claimant a medical examination or obtaining a medical
opinion when such an examination or opinion is necessary to
make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A (West
2002); 38 C.F.R. § 3.159 (2006).
Service connection for post-traumatic stress disorder (PTSD)
requires medical evidence establishing a diagnosis of the
disorder, credible supporting evidence that the claimed in-
service stressors actually occurred, and a link, established
by medical evidence, between the current symptomatology and
the claimed in-service stressors. 38 C.F.R. § 3.304(f)
(2006).
With regard to the second PTSD element, that of an in-service
stressor, the Board notes that there has been no attempt to
verify the veteran's allegations. In this regard, it appears
that the veteran has not been asked to provide any additional
details pertaining to the alleged casualties he witnessed, as
reported to the May 2005 private psychologist. Nor has the
RO contacted the appropriate agency to verify such
casualties. Therefore, a remand is necessary so that the RO
may send the veteran a proper stressor development letter and
attempt to verify the veteran's claimed in-service stressors.
The Board also notes that the veteran's service medical
records may be incomplete. The record indicates that the RO
obtained and associated the veteran's service medical records
with the claims file. However, those records reference
inpatient and mental hygiene records in service. Based upon
a review of the documents assembled for appellate review, the
Board finds that it is unclear whether the search for service
records included "clinical" (inpatient) records and/or
records from a mental health clinic. Thus, additional
efforts should be undertaken to attempt to obtain any
additional service related records, as these may contain
evidence relevant to these claims.
In addition, the Board notes that the veteran was scheduled
for a VA examination in February 2005, but he failed to
report for that examination. The veteran's representative
did submit a letter in January 2005 in which he contended
that the veteran was incapable of traveling 96 miles for the
scheduled examination, despite the fact that he had
previously sought treatment at the same VA medical center on
several occasions between November 2004 and January 2005.
The veteran instead furnished the report of two private
psychologists. However, the Board finds the May 2005 report
to be problematic because it is unclear as to whether it was
based on a review of the claims file as opposed to the
veteran's own history. The Board observes that the situation
here presented is similar to that in Kowalski v. Nicholson,
19 Vet. App. 171, 179 (2005). Under these circumstances, a
VA examination must be scheduled. See Kowalski, 19 Vet.
App. at 179.
Moreover, during the pendency of this appeal, on March 3,
2006, the United States Court of Appeals for Veterans Claims
(Court) issued a decision in the consolidated appeal of
Dingess/Hartman v. Nicholson, Nos. 01-1917 and 02-1506, which
held that the VCAA notice requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements
of a service connection claim, including the degree of
disability and the effective date of an award. In the
present appeal, the veteran was not provided with notice of
the type of evidence necessary to establish a disability
rating or an effective date. As those questions are involved
in the present appeal, this case must be remanded for proper
notice under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b),
that includes an explanation as to the type of evidence that
is needed to establish a disability rating and an effective
date.
Therefore, in order to give the appellant every consideration
with respect to the present appeal and to ensure due process,
it is the Board's opinion that further development of the
case is necessary. Accordingly, the case is REMANDED for the
following actions:
1. The RO should send the veteran a
notice letter in connection with his
claim for service connection for anxiety
and depression and for PTSD. The letter
should include an explanation as to the
information or evidence needed to
establish a disability rating and an
effective date, as outlined by the Court
in Dingess/Hartman v. Nicholson, 19 Vet.
App. 473 (2006).
2. The RO should contact the veteran
and request that he submit evidence
from his private psychologists
indicating whether their May 2005
examination report was based on a
review of the claims file.
3. The RO should contact the
National Personnel Records Center
(NPRC), or other appropriate
location, to make a specific request
for service medical inpatient and
outpatient psychiatric or mental
health records of the veteran and
through any other appropriate records
repository to which pertinent
clinical records may have been sent.
Specifically, it should be
ascertained whether mental health
records may be stored somewhere other
than with the service medical
records. These efforts should
include requesting "clinical" or
inpatient records documenting the
veteran's treatment from September
1968 to November 1968.
As set forth in 38 U.S.C.A.
§5103A(b)(3) and 38 C.F.R.
§3.159(c)(2), the RO should continue
efforts to locate such records until
it is reasonably certain that such
records do not exist or that further
efforts to obtain those records would
be futile. The veteran should be
notified of the RO's attempts to
locate his medical records from his
active duty service as well as any
further action to be taken.
4. The RO should contact the veteran
and offer him the opportunity to provide
any additional information he can
remember regarding his claimed stressors
as well as inform him of the importance
of providing as much detail as possible.
The veteran should be asked to provide
specific details of the claimed
stressful events during service, such as
the names of casualties and identifying
information concerning any other
individuals involved in the events,
including their ranks, units of
assignments, or any other identifying
details.
5. With this information, the RO should
review the file and prepare a summary of
all the claimed stressors. This summary
must be prepared whether or not the
veteran provides an additional
statement, as requested above. This
summary, a copy of the veteran's DD 214,
and all associated service documents
should be sent to the U.S. Army Joint
Service Records Research Center (JSRRC),
National Archives and Records
Administration (NARA), or any other
appropriate agency for verification of
the alleged stressful events in service.
JSRRC, NARA, or any other agency should
be provided with a copy of any
information obtained above and should be
requested to provide any additional
information that might corroborate the
veteran's alleged stressors. A search
of unit and organizational histories,
including morning reports and after
action reports, should be consulted in
an effort to verify stressors.
6. Following the receipt of a response
from the entities as outlined above, the
RO should prepare a report detailing the
nature of any stressor which it has
determined is established by the record
as having occurred. If no stressor has
been verified, the RO should so state in
its report. This report is then to be
added to the claims folder.
7. The veteran should be afforded a
psychiatric examination to determine the
diagnosis of any and all psychiatric
disorders which may be present. Any and
all studies, tests, and evaluations
deemed necessary by the examiner should
be performed, but should include
psychological testing including PTSD sub
scales. The RO should provide the
examiner with a summary of any verified
in-service stressors, and the examiner
must be instructed that only these
events may be considered for the purpose
of determining whether exposure to an in
service stressor has resulted in his
current PTSD symptoms. The examiner
should also determine whether the
diagnostic criteria to support the
diagnosis of PTSD have been satisfied.
If the PTSD diagnosis is deemed
appropriate, the examiner should comment
upon the link between the current
symptomatology and one or more of the
verified in-service stressors.
If it is determined that the veteran
has a current psychiatric disorder in
addition to or other than PTSD, the
examiner should indicate whether it
is at least as likely as not that the
disorder is related to his
symptomatology in service or other
wise causally or etiologically
related to his military service.
(The term "at least as likely as
not" does not mean within the realm
of medical possibility, but rather
that the medical evidence both for
and against a conclusion is so evenly
divided that it is as medically sound
to find in favor of causation as it
is to find against it.)
A clear rationale for all opinions would
be helpful and a discussion of the facts
and medical principles involved would be
of considerable assistance to the Board.
Since it is important "that each
disability be viewed in relation to its
history[,]" 38 C.F.R. § 4.1 (2006),
copies of all pertinent records in the
appellant's claims file, or in the
alternative, the claims file, must be
made available to the examiner for
review.
When the development requested has been completed, the case
should be reviewed by the RO on the basis of additional
evidence. If the benefit sought is not granted, the veteran
and his representative should be furnished a Supplemental
Statement of the Case and be afforded a reasonable
opportunity to respond before the record is returned to the
Board for further review.
The purpose of this REMAND is to obtain additional
development, and the Board does not intimate any opinion as
to the merits of the case, either favorable or unfavorable,
at this time. The appellant has the right to submit
additional evidence and/or argument on the matter or matters
the Board has remanded to the regional
office. Kutscherousky v. West, 12 Vet. App. 369 (1999). No
action is required of the veteran until he is notified.
As a final matter, the Board, quoting the Court in Kowalski,
reminds the veteran and his attorney that
"[t]he duty to assist is not always a one-way street.
If a veteran wishes help, he cannot passively wait for
it in those circumstances where he may or should have
information that is essential in obtaining the putative
evidence." . . . . VA has not only the discretion, but
in this case, the duty under 38 U.S.C. § 5103A(d). . .
to schedule an examination . . . . [The veteran] and his
counsel are expected to cooperate in the efforts to
adjudicate his claim. Their failure to do so would
subject them to the risk of an adverse adjudication
based on an incomplete and underdeveloped record.
_________________________________________________
KATHLEEN K. GALLAGHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).